Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 1 of 26

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1 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 1 of 26 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS FERMIN ALDABE., Plaintiffs V. ENVIRONMENTAL SERVICES, INC.; VERIFIED CARBON STANDARD ASSOCIATION; AMERICAN NATIONAL STANDARDS INSTITUTE, Defendants. C.A. No MLW MEMORANDUM AND ORDER WOLF, D.J. September 20, 2017 I. INTRODUCTION Plaintiff Fermin Aldabe filed this case in the Middlesex Superior Court or the Commonwealth of Massachusetts on May 27, Plaintiff alleges that defendant Environmental Services, Inc. ("ESI") has breached its contractual obligation to review his project for participation in a carbon emissions trading program. ESI timely removed the case to federal court. On January 13, 2017, with leave of court, Aldabe, pro se, filed an amended complaint adding as a defendant the Verified Carbon Standard Association ("VCS") / a Washington D.C.-based non-profit corporation. VCS develops standards for quantifying reductions in carbon emissions and verifying that projects designed to avoid or reduce emissions have met their goals. See VSC Ex. 3 (Docket No. 71-1) at SI5. The amended complaint also joined as a defendant the American National

2 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 2 of 26 Standards Institution ("ANSI"), an organization with offices in Washington, D.C. and New York. See ANSI Ex. 3 (Docket No. 58-3). On January 13, 2017, plaintiff moved for a preliminary injunction ordering ESI to perform its obligations under the alleged contract. See Docket No. 42. ESI and VSC moved to dismiss the case for lack of personal jurisdiction, among other grounds. Docket Nos. 46 (ESI's motion) & 71 (VSC's motion). ANSI moved to dismiss for failure to serve of process in compliance with the Federal Rules of Civil Procedure. See Docket No. 57. Nevertheless, plaintiff moved for a default judgment against ANSI. See Docket No The court is allowing VCS's and ESI's motions to dismiss and allowing ANSI's motion to dismiss without prejudice. As explained below, ESI and VCS are out-of-state corporations and lack the minimum contacts necessary for the court to exercise personal jurisdiction over them. In addition, plaintiff did not comply with Rule 4 of the Federal Rules of Civil Procedure when he attempted to serve process on ANSI. Accordingly, the court is dismissing the claims against all three defendants. Finally, because the court 1 Plaintiff titled the motion as a "Motion for Summary Judgment." However, the body of his motion requests a "default judgment" on the grounds that "ANSI...has failed to file a defense under [Federal Rule of Civil Procedure] 12(a)(1)(A)(i) within the allowed time." Therefore, the court is construing the motion as a request for a default judgment.

3 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 3 of 26 lacks jurisdiction over ESI and ANSI, the motions for a preliminaryinjunction and for a default judgment are being denied. The Motion for Default Judgment is also being denied because a default has not entered against ANSI. See Fed. R. Civ. P. 55. II. LEGAL STANDARDS A. Personal Jurisdiction When the court's personal jurisdiction over a defendant is challenged, the plaintiff bears the burden to establish that jurisdiction exists. See Adams v. Adams, 601 F.3d 1, 4 (1st Cir. 2010). Three methods exist for determining whether the plaintiff has met its burden at the motion to dismiss stage. See Foster- Miller, Inc. V. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995). The "prima facie" method is most appropriate in cases where, as here, the parties have not presented conflicting versions of the facts. See Nowak v. Tak How Investments, Ltd., 94 F.3d 708, 712 (1st Cir. 1996).2 2 The prima facie method "offers little assistance in closer, harder-to-call cases, particularly those that feature conflicting versions of the facts." Foster-Miller, 46 F.3d at 145. Where it is inappropriate to use the prima facie standard, courts may use the "preponderance standard" or the "likelihood standard." See Foster-Miller, 46 F.3d at In using the preponderance standard, a court conducts fact-finding "in the traditional way, taking evidence and measuring the plaintiff's jurisdictional showing against a preponderance-of-the-evidence standard." Foster- Miller, 46 F.3d at 145. The "likelihood standard" is an intermediate standard. See Boit, 967 F.2d at 677. In applying this standard, a court conducts an evidentiary hearing and weighs the

4 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 4 of 26 To make a prima facie showing of jurisdiction, the plaintiff "cannot rest upon the pleadings but is obliged to adduce evidence of specific facts." Id.; Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir. 1992)("[P]laintiffs may not rely on unsupported allegations in their pleadings to make a prima facie showing of personal jurisdiction."). The court must "consider...whether the plaintiff has proffered evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction." Foster-Miller, 46 F.3d at 145. The court accepts the plaintiff's proffered and properly documented facts as true "irrespective of whether the defendant disputes them, and in so doing, construe[s] them in the light most congenial to the plaintiff's jurisdictional claim." Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007). "Those facts put forward by the defendant become part of the mix only to the extent that they are uncontradicted." Id. A federal district court may exercise personal jurisdiction over non-resident defendants to the same extent as a state court in the state in which the district court is located. See Daynard evidence but makes findings limited to "whether the plaintiff has shown a likelihood of the existence of each fact necessary to support personal jurisdiction." Id.; see Foster-Miller, 4 6 F.3d at In contrast, when the court "applies the prima facie standard and denies the motion to dismiss, it is implicitly, if not explicitly, ordering 'that hearing and determination [of the motion to dismiss] be deferred until the trial.'" Boit, 967 F. 2d at 676.

5 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 5 of 26 V. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F. 3d 42, 51 (1st Cir. 2002). Massachusetts courts have personal jurisdiction over non-residents only if jurisdiction comports with Due Process and is permitted by a Massachusetts statute, such as the long-arm statute. Mass. Gen. Laws Chapter 223A, 3. See Bulldog Investors Gen. P'ship v. Sec'y of the Commonwealth, 457 Mass. 210, 215 (2010). The First Circuit recently stated that "the Massachusetts long-arm statute might impose more restrictive limits on the exercise of personal jurisdiction than does the Constitution," Copia Communications, LLC v. AMResorts, L.P., 812 F. 3d 1, 4 (1st Cir. 2016).3 Among other things. Mass. Gen. Laws Chapter 223A, 3 authorizes personal jurisdiction over "a person, who acts directly or by an agent, as to a cause of action...arising from the persons... transacting any business in [Massachusetts]." For jurisdiction to exist under the portion of the Massachusetts statute pertinent here, "the facts must satisfy two requirements- 3 The First Circuit has not reconciled this suggestion with the Supreme Judicial Court's statement that the statute is "an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States." Daynard, 290 F. 3d at 52 (quoting Automatic Sprinkler Corp. of am. V. Seneca Foods Corp., 361 Mass. 441 (1972)).

6 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 6 of 26 the defendant must have transacted business in Massachusetts, and the plaintiff's claim must have arisen from the transaction of business by the defendant." Tatro v. Manor Care, Inc., 416 Mass. 763, (1994); see also Evans Cabinet Corp. v. Kitchen Int'l, Inc., 593 F.3d 135, 146 (1st Cir. 2010). "The Due Process Clause of the Fourteenth Amendment requires that a defendant have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Baskin- Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F. 3d 28, 35 (1st Cir. 2016)(quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). This requirement "protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful 'contacts, ties, or relations.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, (1985)(citing Int'l Shoe, 326 U.S. at 319). "By requiring that individuals have 'fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign,' the Due Process Clause 'gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.'" Id. (citing Shaffer v. Heitner, 433 U.S. 186, 218 (1977); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,

7 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 7 of (1980)). Consistent with these principles, a court may only exercise jurisdiction over a defendant whose "conduct and connection with the forum State" must be "such that [it] should reasonably anticipate being haled into court there." World-Wide Volkswagen, 444 U.S. at 297. "[A] federal district court may exercise either general or specific jurisdiction over a defendant." Baskin-Robbins, 825 F. 3d at 35. A court has general or "all-purpose" personal jurisdiction over an out-of-state defendant whose "affiliations with the forum state are so continuous and systematic as to render [the defendant] essentially at home" in that state, such that it may reasonably expect to be required to answer any claim in that forum. Daimler AG V. Bauman, 134 S. Ct. 746, 761 (2014); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). Specific jurisdiction, on the other hand, depends on an "affiliation between the forum and the underlying controversy," such as "activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." Id. It may be exercised only when three conditions are satisfied: First, the claim underlying the litigation must directly arise out of, or relate to, the defendant's forum-state activities. Second, the defendant's in-state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state's laws and making the defendant's involuntary presence before the state's courts foreseeable. Third, the exercise of jurisdiction must...be reasonable.

8 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 8 of 26 Copia, 812 F. 3d at 4 (quoting Phillips v. Prairie Eye Ctr.^ 530 F.3d 22, 27 (1st Cir.2008)). The "purposeful availment" requirement "represents a rough quid pro quo: when a defendant deliberately targets its behavior toward the society or economy of a particular forum, the forum should have the power to subject the defendant to judgment regarding that behavior." Carreras v. PMG Collins, LLC, 660 F.3d 549, 555 (1st Cir.2011). "The cornerstones of this inquiry are voluntariness and foreseeability." C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 66 (1st Cir. 2014). The court must determine whether the defendant "'deliberately' has engaged in significant activities within a state...or has created 'continuing obligations' between himself and residents of the forum," such that "he manifestly has availed himself of the privilege of conducting business" in the state and "shielded" himself with the "benefits and protections of the forum's laws." Burger King, 471 U.S. at His interactions with in-state residents "must be voluntary and not based on the unilateral actions of another party." Adelson, 510 F.3d at 50. Moreover, they cannot be so "'[r]andom,' 'fortuitous,' or 'attenuated'" that the defendant could not foresee litigation in the forum. Burger King, 471 U.S. at 475.

9 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 9 of 26 B. Service of Process Unless a defendant waives any defect in service of process, process "must be served in accordance with Fed. R. Civ. P. 4, in order for the court to secure personal jurisdiction over him." Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir. 1988). Once the sufficiency of service of process is challenged, the plaintiff has the burden of proving proper service. See Rivera- Lopez V. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir.1992). If he does not carry that burden, "the court has broad discretion to dismiss the action or to retain the case but quash the service that has been made on the defendant." 5B Wight & Miller, Fed. Prac. & Proc. Civ (3d Ed.); Fed. R. Civ. P. 4 (m) (emphasis added). ("If a defendant is not served within 120 days after the Complaint is filed, the court--on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or order that service be made within a specified time.")(emphasis added). "The dismissal of a complaint is an inappropriate exercise of...discretion when there exists a reasonable prospect that service may yet be obtained." Cutler Assocs., Inc. V. Palace Constr., LLC, 132 F. Supp. 3d 191, 194 (D. Mass. 2015)(Hillman, D.J.); see also Umbenhauer v. Woog, 969 F.2d 25, 30 (3rd Cir. 1992); Rivera Otero v. Amgen Manufacturing Limited, 317 F. R. D. 326, 328 (D. P. R. 2016).

10 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 10 of 26 "Actual notice and simply naming the person in the caption of the complaint is insufficient to subject a defendant to the jurisdiction of the district court." Echevarria-Gonzalez, 849 F.2d at 28. Rather, Federal Rules of Civil Procedure 4(h) and 4(e)(1) require a plaintiff to serve a corporation in a judicial district of the United States in one of two ways. First, the plaintiff may "follow[] state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed. R. Civ. 4(e)(1). The plaintiff has sued in the District of Massachusetts and served ANSI in Washington, D.C. Therefore, he must serve process according to: Rules 4(d) (2) and (e) of the Massachusetts Rules of Civil Procedure; Rule 4 (h) of the District of Columbia Superior Court Rules of Civil Procedure; or Rule 4(h)(1)(B) of the Federal Rules of Civil Procedure. All three rules require service on "an officer," a "managing or general agent," or any other agent authorized to accept service on behalf of a corporation. Id. III. FACTUAL BACKGROUND The following facts are undisputed or supported by plaintiff's well-documented evidentiary proffers, viewed in a light most favorable to him. See Adelson, 510 F.3d at 48. In January 2013, plaintiff, then a resident of Singapore and Bolivia, see Pi's 0pp. to ESI (Docket No. 52) at SI7, was involved in a project called "Protection of the Amazon Rainforest II." The 10

11 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 11 of 26 project was a plan to protect certain portions of Amazon tropical forest in Boliva from planned deforestation, which produces carbon emissions when trees are cut or burned. VCS Ex. A at ^24, Ex. A- 2. The resulting emissions reductions can be sold as offsets, which are called "credits," or "Verified Carbon Units," on the carbon credit market. Such credits allow emitters to comply with regulatory emissions limits without reducing their own emissions."^ To monetize a reduction in carbon emissions as a tradeable credit, participants in the carbon credit market must reliably calculate the quantity emissions avoided by preserving the designated portions of forest. Certain organizations have established standards for measuring amounts of emissions avoided or reduced by projects comparable to plaintiff's. VCS is one such organization. VCS is a non-profit corporation incorporated in Washington, D.C. with its principal place of business in Washington D.C. VCS Ex. A at SI4. VCS has established a standard the "Verified Carbon Standard" (the "VC Standard")-- for verifying and measuring the tons of carbon dioxide prevented or reduced by a given project, so that the avoided emissions can be reliably converted to carbon credits. Id. at SI5. VC registers. ^ For background on the carbon credit market and the role of forest preservation projects in producing offsets, see Don J. Melnick, Mary C. Pearl and James Warfield, "Make Forests Pay: A Carbon Offset Market for Trees," The New York Times (Jan. 19, 2015). 11

12 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 12 of 26 in a database, projects seeking to generate such credits using the Verified Carbon Standard. It also reviews those projects to "validate" and "verify" them as properly applying the VC standard in measuring the emissions reductions achieved by the project. The VC standard "lays out the rules and requirements which all projects must follow in order" to be awarded "Verified Carbon Units," or credits verified as accurately representing a certain quantity of emissions reductions, to sell on the market. First Amended Complaint ("FAC") at ^60. VCS requires that "in order to validate and verify [a] project," a project proponent must use "one of 5 listed validation and verification bodies..." FAC at SI196. ESI, a Florida corporation with its principle place of business in Florida, is one such body. See ESI Ex. A at 12. ESI has no officers or employees in Massachusetts, does not own any real estate in the state, and has not designated an agent for service of process in the state. See id. at While ESI has entered into 16 contracts with Massachusetts-based customers, none of them involved services to be performed in or products to be delivered to Massachusetts. See id. at On January 8, 2013, plaintiff and ESI entered into a contract under which ESI would "validat[e] and "verif[y]" plaintiff's forest preservation project. Ex. A to Pi's Motion for Preliminary Injunction {"M. for P. I.")(Docket No. 6-1) (Contract) at 6. That 12

13 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 13 of 26 is, ESI agreed to ensure that plaintiff was properly applying the VC standard in determining how many tons of carbon emissions would be avoided as a result of the project. Id. The agreement provided that ESI would, for a fee, assess plaintiff's compliance with the VC standard according to certain documents promulgated by VCS. See id. at 2. ESI was to review documentation submitted by the plaintiff, conduct inspections of the project site, and could submit requests for more information if it determined that aspects of the project were unclear or did not conform with VCS standards. Id. at 6-8. ESI agreed, upon completion of specified stages of the review, to issue a "validation" report and a "verification" report, which would be reviewed and approved by VCS. Id. at 6-9. The agreement does not include an address for the plaintiff. The contract also does not include a choice-of-law provision. In 2013 and 2014, ESI raised certain issues concerning the project's compliance with the VC standard and requested more information from plaintiff. FAC at fsi24-34; M. for P.I., Exs. D & E (Docket Nos & 29-6). On April 22, 2014, ESI reported to plaintiff by that it had "been waiting for some response from you for a considerable time" and had "close[d] the file" for plaintiff's project "with the information [it] had in hand because [it] had no positive indication that [plaintiff] w[as] continuing" with the project. I^ Ex. E (Docket No. 29-6) at 2. Plaintiff responded that he "intend[ed] to resolve the outstanding [issues]" 13

14 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 14 of 26 and would reply to ESI's concerns when the necessary information became available. Id. In April 2015, plaintiff moved to Massachusetts. Third Aldabe Aff. (Docket No. 36) at Sill. That same month, he contacted ESI for the first time since April Id. Ex. F (Docket No. 29-7). On November 24, 2015, ESI informed plaintiff by that it would require updated documentation, based on "updated criteria," to "re-start" the verification process. Id. Ex. H (Docket No. 29-9) at 2-4. It also informed him that "full payment... need[ed] to be received ($7, owed)" on "outstanding invoices" before the review could resume. Id.; Third Aldabe Aff. Ex. 1 (Docket No. 36-1) at 2. Plaintiff paid the $7, by check on February 2, Third Aldabe Aff. (Docket No. 36) at SI3. The check listed plaintiff's address as "120 Dunstable Rd., Westford, MA." Third Aldabe Aff. Ex. 2 (Docket No. 36-2) at 2. On January 13, 2016, ESI sent plaintiff another proposing three options: that he "continue with the validation/verification of the project from the current point based on the ESI terms and estimated prices as previously outlined via s and VCS recent guidance," that he "completely start over as a brand new project validation/verification with ESI," or start over with another validation/verification body. Id. Ex. G (Docket No. 29-8) at 2. Plaintiff claims that he "rejected" the offer by ESI to "start over as a brand new project" and opted 14

15 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 15 of 26 instead to "continue with the validation/verification of the project" with only minor revisions to the original plan. See FAC at 538. ESI issued a revised "Validation/verification and Sampling Plan" on March 8, 2016, listing the plaintiff's address as "Nicanor Salvatierra 179, Riberalta, Zona Central, Bolivia." Id. Ex. L (Docket No ) at 2. In April 2016, ESI raised more concerns regarding the project, many based on revisions to the VC standard that had occurred since the parties began the validation process in See FAC at 5157; M. for P.I. Exs. J & N. (Docket No & 6-14). In a series of exchanges regarding the newly-raised issues, plaintiff accused ESI of overbilling and attempting to delay the validation process and threatened legal action. See id. Exs. L, P, & Q (Docket No. 6-12, 6-16, & 6-17). In a May 26, , ESI denied plaintiff's accusations and stated that "if you choose to pursue legal action, ESI will stop work until there is a resolution." Id. Ex. R. Plaintiff filed this case on May 27, He alleged, in essence, that ESI had breached its contractual obligation by refusing to proceed with the validation process based on unreasonable claims that the project failed to comply with VCS standards in certain respects. Among other things, plaintiff alleges that ESI breached the contract by conditioning validation on the revised standards established after the contract's 15

16 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 16 of 26 inception, failed to timely notify him that the standards had been revised, missed certain deadlines, overbilled the plaintiff and, finally, improperly stopped work when plaintiff threatened legal action. On January 13, 2017, plaintiff amended the complaint to add claims against VCS and ANSI. He re-alleges the claims against ESI and alleges, in addition, that he and VCS had a contract according to which VCS promised to provide a "robust quality assurance standard" in exchange for 10 percent of each credit issued as a result of the project. FAC at S[183. Plaintiff alleges that VCS breached that contract by failing to give him timely notice of anticipated revisions to the VC standard. Separately, he alleges that VCS artificially depressed the price of carbon credits by misrepresenting the supply of validated credits in its database. Finally, he claims that both VCS and ANSI, which he claims were responsible for "certifying" ESI as competent to validate the project, were negligent in doing so. The complaint has 16 counts including, among other things, claims for common-law breach of contract, negligence, and misrepresentation. Plaintiff seeks damages against all parties, as well as specific performance against ESI. As indicated earlier, all three defendants have moved to dismiss. 16

17 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 17 of 26 IV. ANALYSIS A. The Motions of ESI and VCS to Dismiss for Lack of Personal Jurisdiction Due process precludes this court from exercising jurisdiction over VCS or ESI because the plaintiff's claims do not "arise out of" or "relate to" any "significant" contacts between the defendants and Massachusetts. Burger King, 471 U.S. at First, the court lacks general jurisdiction over ESI or VCS. Neither defendant is incorporated or has any office or employees in Massachusetts. Therefore, neither defendant has "affiliations with [Massachusetts] [that] are so continuous and systematic as to render [it] essentially at home" in the state. Daimler, 134 S. Ct. at 761. Therefore, plaintiff must establish jurisdiction over ESI and VCS that is specific to his claims in this case. To establish specific personal jurisdiction, "a defendant's physical presence in the territorial jurisdiction is not required." C.W. Downer & Co., 771 F. 3d at 68. The court may rely on "the defendant's inforum solicitation of the plaintiff's services, the defendant's anticipation of the plaintiff's in-forum services, and the plaintiff's actual performance of...in-forum services." Copia Communications, 812 F. 3d at 6. In C.W. Downer & Co., for example, the chairman of the Canadian defendant learned about a potential business opportunity with the plaintiff, a Massachusetts 17

18 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 18 of 26 investment bank, after traveling in person to the bank's Boston headquarters. C.W. Downer & Co., 771 F. 3d at 63. At the request of the defendant, the bank performed "extensive services" in Massachusetts, id. at 69, in an "intensive" collaboration with the defendant, id. at 67, and communicated with third parties from Massachusetts on the defendant's behalf, id. at 67. The court found that personal jurisdiction existed in Massachusetts. Id. at 65. However, in this case, plaintiff does not allege that defendants' employees ever traveled to Massachusetts, or that any of the work contemplated by the contract was performed here. The only relevant contacts between defendants and Massachusetts were: (1) the s and telephone calls between defendants' employees and the plaintiff while he was in Massachusetts, in which the parties discussed the contract and exchanged information pertinent to the validation process; and (2) plaintiff's payment to ESI with a check drawn from a Massachusetts bank. See Pi's 0pp. to VCS's Motion to Dismiss (Docket No. 79) at SIS18-12; Pi's 0pp. to ESI's Motion to Dismiss (Docket No. 52) at ^S[l-6, 40-47, In Nowak v. Tak How Investments, Ltd., the First Circuit found personal jurisdiction in Massachusetts over a Hong Kong hotel owner based on correspondence with Massachusetts residents, even though the defendant had never traveled to Massachusetts. 94 F. 3d 708, (1st Cir. 1996). The court relied on the corporation's "unprompted solicitation" sent directly to the plaintiff's 18

19 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 19 of 26 employer in Massachusetts as part of "continued correspondence by [the defendant] to Massachusetts." Id. As a result of those solicitations, the plaintiffs stayed at the defendant's hotel, where one died in the swimming pool. The solicitations were sufficient contacts to confer personal jurisdiction over the defendant because they were "designed to...entice employees to stay at the hotel" as part of an ongoing relationship between the two companies. Id. at 717. The court explained that: When a foreign corporation directly targets residents in an ongoing effort to further a business relationship, and achieves its purpose, it may not necessarily be unreasonable to subject that corporation to forum jurisdiction when the efforts lead to a tortious result. The corporation's own conduct increases the likelihood that a specific resident will respond favorably. If the resident is harmed while engaged in activities integral to the relationship the corporation sought to establish, we think the nexus between the contacts and the cause of action is sufficiently strong to survive the due process inquiry at least at the relatedness stage. Id. at 716. Here, however, defendants did not "deliberately" invoke "the benefits and protections of Massachusetts laws" by communicating with a Massachusetts resident over and telephone or accepting a check drawn from a Massachusetts bank. Burger King, 471 U.S. at In Copia Communications, the First Circuit held that a court in the District of Massachusetts lacked personal jurisdiction over a Jamaican company, Seawind, and its Pennsylvania-based alter-ego 19

20 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 20 of 26 in a breach of contract case brought by a Massachusetts Corporation, Copia. See 812 F. 3d at 2-5, The parties had negotiated a contract for Copia to provide internet services at one of the defendants' Jamaican resorts. Id. at 2-3. There, as here, when negotiating and performing the contract, Copia's CEO communicated with the defendants by and telephone from Massachusetts. Id. In other respects, the defendants' contacts with Massachusetts were more purposeful than they are here. The contract identified Copia as a Massachusetts corporation and listed its Massachusetts address. Id. at 3. The defendants also terminated the relationship by an addressed to Copia's Massachusetts office. Id. In affirming the dismissal, the First Circuit reiterated that "in a contract suit, defendant's awareness of plaintiff's location in forum state, combined with defendant's occasional transmission of contract-related communications into forum state, was insufficient to establish defendant's purposeful availment of forum state." Id. at 5 (citing Phillips, 530 F.3d at 27). The court reasoned that the defendants: did no more than welcome in Jamaica Copia's offer to provide equipment and services to Seawind in Jamaica, and Seawind had no relevant contact with Massachusetts beyond the insubstantial contacts that anyone would have when buying goods and services from a company that itself happens to be in Massachusetts. None of this by itself represents the type of purposeful availment of the privilege of conducting business in Massachusetts that would have made it reasonably foreseeable that Seawind 20

21 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 21 of 26 could be "haled into court" in Massachusetts on its contract with Copia. Id. at 6. As in Copia Communications, in this case the telephone calls, s, and payments exchanged between the parties were not solicitations "directly targeted" to a Massachusetts resident as part of an ongoing campaign to obtain business from Massachusetts. Nowak, 94 F. 3d at 716. That correspondence concerned the performance of a contract the parties entered in 2013, when plaintiff was a resident of Singapore and Bolivia. See Pi's 0pp. to ESI's Motion (Docket No. 52) at SI7. Plaintiff alleges that he and ESI "renegotiated" the contract beginning in a January exchange. Id. However, there is no evidence that ESI knew plaintiff resided in Massachusetts before February In addition, plaintiff concedes that any modifications to the contract made while he was in Massachusetts were not significant because he "rejected" the offer by ESI to "start over as a brand new project" and opted instead to "continue with the validation/verification of the project" with only minor revisions to the original plan. See FAC at SI38; Second Aldabe Aff. (Docket No. 29-1) at 517. The s plaintiff submitted indicate that the $7, he paid in February 2016 was already due on "outstanding invoices" under the existing 2013 agreement and, therefore, did 21

22 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 22 of 26 not constitute a new payment solicited from him as a Massachusetts resident. See M. for P.I. Ex. H (Docket No. 29-9) at 2-4. Finally, receipt of a check drawn from a Massachusetts bank is no more deliberate an availment of Massachusetts' laws or economy than receipt of any other service from a Massachusetts resident, which the First Circuit held insufficient to establish jurisdiction in Copia Communications, 812 F. 3d at 6. Therefore, plaintiff's correspondence with ESI and VCS represents only the "insubstantial contacts that anyone would have" when performing a contract with a Massachusetts resident. Copia Communications, 812 F. 3d at 5. Accordingly, the court lacks personal jurisdiction over ESI and VCS. B. ANSI's Motion to Dismiss for Failure of Service of Process The court is dismissing the claims against ANSI without prejudice for failure of service of process. See Fed. R. Civ. P. 12(b) (5); 53 Wight & Miller, Fed. Prac. & Proc. Civ (3d Ed.). As explained earlier, the applicable federal, Massachusetts, and District of Columbia rules require plaintiff to serve process on a designated individual: "an officer," a "managing or general agent," or any other agent authorized to accept service on behalf of ANSI. Fed. R. Civ. P. 4(h); Mass. R. Civ. P. 4(d)(2); D.C. Super. Ct. R. Civ. P. 4(h). Instead, plaintiff sent the summons and complaint to ANSI's office in Washington, D.C. in an envelope addressed generally to "ANSI." ANSI's 0pp. Exs. 1 (Docket No

23 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 23 of 26 1). Donna Malloy, the Office Administrator for ANSI's Washington, D.C. office, received the summons and complaint in the mail. See Malloy Aff. (Docket No. 58-3) at ^3. Malloy is not authorized to accept service on behalf of ANSI. See id. at 115. Therefore, the service was insufficient to confer personal jurisdiction. See Echevarria-Gonzalez, 849 F.2d at 28 Plaintiff argues that the service on ANSI complied with Massachusetts Rule of Civil Procedure 4. In particular, he directs the court to subsection (e)(3) of that rule, which authorizes a plaintiff to serve process on out-of-state corporations "by any form of mail addressed to the person to be served and requiring a signed receipt." This rule exempts process served on out-of-state corporations from Rule 4(c) 's requirement that process be served "by a sheriff, by his deputy, or by a special sheriff, or by a[nother] person duly authorized by law" or "appointed by the court." See Mass. R. Civ. P. 4 (c)("[w] herever in these rules service is permitted to be made by certified or registered mail, the mailing may be accomplished by the party or his attorney."). However, the Massachusetts still requires that service on out-of-state corporations be sent to an individual designated under Rule 4(d) (2) to receive service on behalf of the corporation, meaning to "an officer, to a managing or general agent, or to the person in charge of the business at the principal place of business thereof, " or "an agent authorized by appointment or by law" to 23

24 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 24 of 26 receive it. In Kagan v. United Vacuum Appliance Co., the Massachusetts Supreme Judicial Court held that an envelope addressed by mail to the defendant company, and not to any designated individual, was not sufficient. 357 Mass. 680, 685 (1970). The Massachusetts Superior Court follows that rule, see Weber v. Zurich Fin. Servs. Grp., 2004 WL , *2 (Mass. Super. Ct. Nov. 30, 2004); Better Boating Ass'n, Inc. v. BMG Chart Products, Inc., 1998 WL , at *2-3 (Mass. Super. Ct. 1998), as do courts in this district, see Smith v. Jenkins, 111 F. Supp. 2d 264, 268 (D. Mass. 2011), rev'd on other grounds, 732 F. 3d 51, (1st Cir. 2013). Therefore, plaintiff's service on ANSI was insufficient to confer personal jurisdiction over it. There is not "a reasonable prospect that service may yet be obtained" within the time period required by Rule 4 (m) of the Federal Rules of Civil Procedure. Cutler Assocs., Inc., 132 F. Supp. 3d at 194; Rivera Qtero, 317 F. R. D. at 328. More than 90 days have passed since the filing of the amended complaint. Under Rule 4(m), "if a defendant is not served within 90 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Id. There are no facts in the record to suggest that ANSI has the contacts with Massachusetts necessary for the court to exercise 24

25 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 25 of 26 personal jurisdiction over it. Therefore, the court is dismissing the claims against ANSI without prejudice to possible reconsideration if the plaintiff establishes that he has perfected service on ANSI. However, in view of ANSI's foreseeable, potentially meritorious motion to dismiss if service is perfected, plaintiff may wish to file a new case against ANSI in another jurisdiction. V. ORDER In view of the foregoing, it is hereby ORDERED that: 1. Verified Carbon Standard Association's and Environmental Services Inc.'s Motions to Dismiss (Docket Nos. 46 & 71) are ALLOWED. 2. American National Standards Institute's Motion to Dismiss for Failure of Service of Process (Docket No. 57) is ALLOWED. Plaintiff may, by October 30, 2017, serve ANSI the summons and complaint in a manner consistent with Rule 4(h) of the Federal Rules of Civil Procedure and move for reconsideration of the dismissal of the claims against ANSI. 3. The Amended Motion for a Preliminary Injunction (Docket No. 42) is DENIED. 4. The Motion for Summary Judgment (Docket No. 60) is DENIED. 5. The Motions for Leave to File Reply Memoranda (Docket Nos. 54 & 81) are ALLOWED. 25

26 Case 1:16-cv MLW Document 86 Filed 09/20/17 Page 26 of This case is DISMISSED without prejudice. UNITED STATES DISTRICT JUDGE 26